‘… what constitutes “risk” is less about what took place in the field than what takes place on the page. How we story the experience. And what we decide to reveal. The risk at this level is about what we disclose to readers about ourselves and others, and how what we write about may figure into our careers.’
H. L. Goodall Jr.Footnote 1‘Authors [in law] are expected to write up research by mentioning “the facts”, the theories, and possibly the methods. The relationship between facts, theories, methods, and the researcher, however, is rendered invisible, and so is the personal, social, and political character of research.’
S. NouwenFootnote 21. Introduction
In the midst of Syria’s social collapse, legal innovation has flourished in a range of public and private registers. The high degree of risk involved in working in such a complex geopolitical context has presented particular challenges for prominent public bodies, thus opening up greater space for a variety of smaller, often non-state actors, to undertake a range of emergency relief, advocacy, and criminal investigation practices.Footnote 3 Some of these actors working on highly sensitive issues are able to operate ‘under the radar’Footnote 4 and require a high degree of secrecy for their continuing success. This article considers the case of one such actor, CIJA, as a way to reflect on the nature of legal research and the production of knowledge in relation to secretive organizations.
CIJA’s risky and secretive work presents particular challenges for the scholar seeking to produce ‘rigorous’ research for a legal audience. The integrity of legal scholars tends to rest on our ability to demonstrate a compelling command of the field, especially through sophisticated engagement with doctrine as well as theory. Yet in the case of researching CIJA, these resources were not available to me. Secrecy required that I could not engage with any of CIJA’s pre-trial briefs, or legal ‘product’ (as doctrine), and the theory of entrepreneurial justice I developed to explain its role in the wider accountability field only emerged much later in the process of my own reflection. In setting up this research, a host of logistical questions soon arose and, given my interest in international criminal justice responses in the midst of the Arab uprisings, I quickly developed an interest in CIJA upon reading some newspaper accounts of their work in Syria. Beyond these stories though, I soon learnt that there was nothing else to go on. Given the lack of data publicly available on CIJA then, how could I, an international legal academic, go about researching this organization? Could anything of scholarly value emerge from such a dearth of data?Footnote 5 Was this type of research just too risky for me as a researcher, but more importantly, to those working in the ‘high threat environment’ of the Syrian accountability field?Footnote 6 Such ruminations quickly opened up a broader set of reflections on the methodologies I would need in approaching CIJA as a secretive organization and as linked to academic anxieties over my own integrity. Accordingly, this article does not offer a detailed account about my substantive findings on the nature of CIJA’s work. Instead, the article serves as a way for us to reflect on the process of scholarly outputs as well as on our own positionality as scholars, lawyers, and activists.
CIJA is hard to categorize. It is registered as a non-governmental organization (NGO) in the Netherlands and has its headquarters in another European capital. Headquarters staff hail overwhelmingly from Western states and many have extensive international criminal law experience. The largest number of dedicated staff working on the Syria files, however, are Syrians themselves and are based in Syria and neighbouring states where they seek to obtain documentation and witness statements that inform both future international trials and have already been used in domestic trials across Europe. As an organization that concentrates on securing and analysing evidence that implicates those at the very top of the Assad regime as well as ISIS, CIJA’s highly sensitive work can only succeed beyond the purview of popular and scholarly scrutiny. While it is an international NGO, its lack of a public profile – it has no website and tends to avoid public scrutiny – points to its divergence with the advocacy work of standard human rights organizations. Although secrecy structures all of CIJA’s extra-organizational interactions, a degree of public recognition and legitimacy is crucial in sustaining its funding (from public donors) and its position within the field of international criminal justice. Part of this legitimacy can derive from academic validity that scholars such as myself can supply. Researching CIJA, then, rests on a delicate negotiation where the scholar can gain knowledge about the organization in a highly constrained manner, which if disseminated discretely and with adequate detachment, can produce a degree of legitimation for CIJA on the one hand, and the preservation of academic integrity on the other.
Yet, risk operates here at a number of levels. Most simply, ‘[r]isk often begins with the choice of research site’.Footnote 7 Once I had identified CIJA for my scholarly inquiry, I was confronted by the far more palpable risks experienced by CIJA’s staff in carrying out their work in and on conflict zones. In walking a fine line between ensuring CIJA discretion and satisfying scholarly conventions, there was the constant risk of foreclosing my CIJA access as well as putting my scholarly reputation at risk.Footnote 8 Through the CIJA case, here I ask, where do the risks lie and how could and should I as a scholar manage this responsibility?
For my own study, I had to turn to interviewing as my sole source of data. This is unusual within the discipline of law and even in the adjunct fields of legal anthropology and socio-legal studies where ethnographically informed methods based on interviews and participant observation are often read together with a range of legal texts. As lawyers, it is hard to abandon our faith in these traditional textual forms, and CIJA’s dearth of documentary data is in stark contrast with the voluminous material already generated by (public) international criminal tribunals.Footnote 9 As these interviews were usually conversations occurring between experts in international law – myself as scholar, and my interlocutor as legal practitioner – we can think of ‘my findings’ as para-ethnographic, or in the words of George Marcus, collaborations among researchers and ‘other sorts of experts with shared, discovered, and negotiated critical sensibilities’.Footnote 10 Studying the worldviews of fellow lawyers operating in highly globalized, secret spaces enables us to explore the ways in which meanings are made, not only through their quotidian work practices, but also through the process of (para)ethnographic inquiry itself. Accordingly, this article provides an ethnographic account about the process of research itself. It seeks to enrich international legal methodological reflection through a conversation with some relevant anthropological debates.Footnote 11
This article begins in Section 2 by discussing my (substantive) findings on CIJA through a concept which I call ‘entrepreneurial justice’.Footnote 12 I define ‘entrepreneurial justice’ as the identification of a gap or weakness in existing public accountability fora and the creation of a new private or privatized organization and/or approach that seeks to address (at least part of) this gap. As exemplary of this trend, studying CIJA’s inner workings is a way of understanding the role of (innovative) international criminal law (ICL) frameworks in the governance of societies in collapse. The article’s central focus emerges in Section 3, which considers questions of access, secrecy, and scholarly knowledge production by engaging with a variety of anthropological debates. Finally, in Section 4, I consider the ethics of such research in relation to the Syrian civil war. In interviewing CIJA’s Syrian lawyers risking their lives on a daily basis, I ask whether it is possible or desirable to reconcile the ‘complex and sometimes contradictory roles as scholars and as activists in the chaotic, multilayered world of’ (post)conflict justice.Footnote 13 Rather than conclude with an unassailable and general prescription, instead, I invite my audience to continue these conversations as enriched through their own reflexive research experiences.
2. Foreground as background: CIJA as an exemplar of entrepreneurial justice
The nature of CIJA as an organization and its work easily lends itself to media-generated narratives about ‘Syria’s truth smugglers’.Footnote 14 Yet, it is also important that as scholars we can step back and interrogate our own responsibility to our research subjects and our scholarly audience(s).Footnote 15 For Madison, ‘fieldwork data travel to the public stage with the hope that the performance will invoke a response (ability) among a group or spectators’.Footnote 16 In this section, I present my findings about CIJA, which emerged from my fieldwork. Although this story is the ‘substantive’ scholarly contribution arising from my research, I want to show that such an account makes sense only when situated within its methodological ‘backstory’. Thus, my brief account of ‘entrepreneurial justice’ here acts not as the foreground, but as the background to this article, allowing us to explore how I came to its conceptualization in Sections 3 and 4.
From modest beginnings in the early days of the Syrian uprising, CIJA has evolved to become a sophisticated organization working in a range of (post)conflict sites including the Balkans, Burma, the Central African Republic, Iraq, Nigeria, and Syria. Once it became clear that events on the ground in Syria were degenerating in 2011, a range of local and international governmental and non-governmental actors started organizing themselves along a spectrum of humanitarian governance.Footnote 17 The future director of CIJA, Dr. William Wiley was an experienced ‘legal humanitarian’ himself,Footnote 18 having worked in Canada’s domestic war crimes programme, the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), and the International Criminal Court (ICC) as a field investigator, before moving to the Iraqi High Tribunal. Britain’s Foreign and Commonwealth Office approached Wiley in 2011 and asked if he could co-ordinate some human rights training for Syrian lawyers. Wiley rejected the human rights portfolio and instead offered to provide services specifically in training local activists and lawyers to collect evidence for future (international) criminal trials. At the time, no one else was doing this in Syria and Wiley wanted to develop the capacity to secure evidence outside the country and build up a cadre of skilled Syrians able to collect robust witness statements as well as documentation now amounting to around 850,000 pages. CIJA’s successes in training and evidence collection soon won the support of a number of European government donors who, since 2013, have provided it with a healthy budget of around €7 million for its operations in Syria and beyond.
Accounts emerging from my interviews with CIJA employees were replete with highly thoughtful and expert reflections gained from experience within public ICL sites. While typically convinced of a world improved (and improvable) through ICL, CIJA’s Western-trained staff were all highly sceptical of current – public – institutional arrangements.Footnote 19 Yet CIJA staff do not see their work as replacing public bodies, but rather, as filling in gaps in public capacities, as best illustrated through CIJA’s assistance with a range of domestic criminal trials.Footnote 20 Along with its various contributions to domestic cases, CIJA’s ‘secondary’ work includes capacity building of local lawyers as well as information sharing with a variety of states conducting anti-terrorist and law-enforcement initiatives. All these ventures implicate traditional public forms of power but are often carried out beyond public scrutiny and knowledge in hidden spaces. If we combine these elements of CIJA’s work along with the way it actively markets its unique contribution to its donors across a range of security, development, and accountability gaps, then ‘entrepreneurial justice’ speaks to its contribution in Syria and beyond.
How was I able to identify the nature of CIJA’s work as a form of entrepreneurial justice? What scholarly risks were involved in relying so greatly on the account of my interviewees? Particularly in engaging with CIJA’s Syrian staff, how could I ensure that my own research did not increase the risks they faced on a daily basis? Could I tell enough of a story to satisfy a ‘scholarly audience’ without compromising the safety of my informants? These were questions I confronted while conducting my research as well as while trying to write up my findings, and they inform the following two sections.
3. Background as foreground: Taking methodology seriously
3.1 Negotiating access and secrecy
Depictions of the Commission’s work have appeared in highly readable, dramatic, and prominent media sources, including The Guardian,Footnote 21The Washington Post,Footnote 22The Economist,Footnote 23 a UK Channel 4 TV documentary,Footnote 24 along with The New Yorker’s detailed portrayal in Taub’s ‘Assad Files’ 2016 story.Footnote 25 These stories were the result of journalists approaching CIJA seeking information on their work. Over time CIJA’s profile has grown in the media world and typically a widely-read article precipitates a raft of further journalistic requests for meetings and interviews, particularly through Nerma Jelacic, one of CIJA’s Directors, former Fleet Street journalist, and then head of communications at the ICTY. For the legal researcher, these stories are frustrating to read: they open up a fascinating topic of inquiry on the nature of private actor accountability mechanisms for Syria, but ultimately, they are superficial – if not sensationalized – accounts. While such accounts do provide some details about CIJA’s work along with the identities of some of its leadership-level staff, beyond this, the exact parameters of CIJA’s funding, location, or network of personnel, remain elusive. They also cannot replace standard scholarly sources, so in trying to design my own research project with sufficient ‘legitimacy’, it soon became evident that I would need to move beyond the realm of journalistic fascination.
After gaining a cursory sense in 2015 about the Commission through these media sources, I started to seek more ‘official’ resources,Footnote 26 such as CIJA’s website, along with any extant scholarly or grey literature on the Commission. My searches produced nothing. I was not surprised by the lack of scholarly or policy reporting given the time frame of less than three years since CIJA’s inception. The absence, however, of any ‘official’ presence of the Commission in the form of a website was puzzling. I resorted to basic Google searches based on the names provided in the media stories. From this, it was clear that CIJA’s Director, William Wiley, was comfortable in being identified. Searching his name led to a handful of references to talks he had given about CIJA and amidst this material was sufficient information to contact him directly.
Like Taub, I was granted access to CIJA through a series of email exchanges, then Skype interviews, and then two visits. The first, to its European headquarters in 2017, and then to a training workshop in the Middle East for its Syrian lawyers in 2018. I agreed to exclude key identifying facts from any published material, which would also be shared with CIJA staff before submission. I was happy to oblige. Yet, unlike a journalist, I was far more interested in the nature of the legal work itself and was unsure how far I could delve into these details. While perhaps sharing a degree of disciplinary affinity with many of my interlocutors as fellow lawyers, the secrets of CIJA’s impressive archive and its now-extensive legal briefs remain out of my reach. It was clear from early email exchanges that I would need to frame my research questions in a manner that enabled CIJA to operate discreetly.Footnote 27 Was there anything of scholarly value though that could emerge from such a constrained inquiry? What sorts of questions could I ask? Was there any way to verify – or triangulate – the material once I had gathered it? Should I be concerned with such questions of research ‘rigour’ at all, or was there some other story to be told about my (ongoing) encounter with this organization?
Perhaps now, four years after initially approaching CIJA, some of these concerns are less vexing. Today there are citable scholarly sources on CIJA,Footnote 28 far more newspaper and policy reports mentioning the Commission, and even an ad hoc internship program offered through Harvard Law School.Footnote 29 Its key spokespeople, Executive Director, William Wiley;Footnote 30 Director (Operations and Investigations), Chris Engels;Footnote 31 Director (Management and External Relations), Nerma Jelacic; as well as the Chair of the Board of Commissioners, Steve Rapp,Footnote 32 continue to sustain a public profile for CIJA’s work. Such material post facto, allows me a degree of triangulationFootnote 33 with my extant data from participant observation and over 30 interviews. Yet, in contrast to much of this material with its remit of overviewing (time and again) the basic characteristics of the Commission, my own encounters provided a chance to reflect substantively on the nature of the production of legal knowledge and academic ‘rigour’. In the absence of other scholarly sources at the time of researching, the process forced me to think about what counts as ‘legally rigorous research’, and how this might be different to rigour in its more traditional social science sense.Footnote 34
The field of law sits uneasily in relation to a number of disciplinary trends. While socio-legal research is closely linked with standard social science approaches to the generation of ‘data’, poststructuralist trends within law, such as those advanced by certain feminist and other critical scholars, are far closer to interpretivist sensibilities that have come to inform the reflective turn in anthropology, which I discuss in the next section. Bochner rejects the possibility of reconciliation between social scientists and interpretivists, pointing out that:
Researchers who seek more accurate predictions do not speak the same language as those who want to understand how different people make sense of the world and how to cope more effectively with contingencies of lived experience. Neither vocabulary is the one and only suitable vocabulary for studying and/or understanding human life.Footnote 35
Within the realm of qualitative inquiry, the constant refrain of rigour can soon turn to ‘rigor-mortis’.Footnote 36 While largely convinced of thinking beyond rigour as a lawyer bereft of legal texts to work with in this case, establishing a claim to academic authority along with sustaining my scholarly integrity has been particularly challenging.
Recounting my (limited) story of access is important in appreciating my relationship with my site of study. The rich world of meaning making that came to emerge from my interviews opened up a series of perspectives not only on the substantive topic, entrepreneurial justice, but also, on the nature of legal knowledge and authority. Making methodological sense of this material through anthropological contributions has further underscored the contingency, not only of my own approach, but of scholarly knowledge more generally. It is important to note these limitations and to sit with them rather than try to resolve them. Massoud advocates this type of ‘accounting’ in his survey of scholarship on conflict zones, suggesting that ‘[i]n addition to what fieldwork reveals, consider what it has not revealed, what has been said and not said, what has been resisted, and what was unexpected’.Footnote 37 It is also important to acknowledge how this knowledge, as present or absent, was solely at the discretion of CIJA staff. For example, on arriving at the training workshop in late 2018, I was advised that I would not be allowed to attend all of the sessions due to their sensitive nature. When this was later revised and I was allowed to attend all of the main sessions, this created a sense of particular privilege, risk as well as responsibility. When placed in such ‘hyphen-spaces’ of research, Cunliffe and Karunanayake remind us that:
[w]hen researchers … spend any time in a research site, they find themselves deliberately and/or unconsciously reacting to respondents’ actions and comments as they negotiate expectations about this relationship, try to gain access to the site and the people, determine what data can be collected and how, which voices will be heard in the research account, and what happens after that study. These issues, crucial to the success of research, are often ignored in research accounts and descriptions of methodology, and yet data collection is a human activity in which relationships emerge that may influence research in significant ways.Footnote 38
While recognizing the constrained access CIJA has provided to me, this was still a rare opportunity and one that carries with it an ethical responsibility, especially for my Syrian interlocutors as explored in Section 4.Footnote 39
I have also come to reappraise the nature of data itself. Rather than seeing more information as more data, and hence more rigorous,Footnote 40 we can also see the absence of information itself as a form of data.Footnote 41 In my case, I could gain a sense of how CIJA wants to present itself to me and to the wider public by noting what was revealed and what remained hidden.Footnote 42 Through the gradual building of rapport,Footnote 43 I was and am permitted to tread a circumscribed path that permits a degree of access in exchange for my continuing discretion.Footnote 44 A mutually beneficial relationship evolves here where I can assemble material for publication, which can also provide a degree of academic legitimacy to CIJA’s work.
The practical result of limited access to a secretive organization is the need to be ever-adaptive in one’s research methods, which may result in ‘novel approaches to writing ethnography’.Footnote 45 Thus, in her reflections on researching the security sector, Leander recognizes that ‘[i]n many situations, it may be difficult to find the kind of data and answer the kinds of questions envisaged by conventional methods instructions and theories’.Footnote 46 Yet, rather than abandon the project, she argues that:
flexibility is the only way of avoiding the scholastic hubris entailed in assuming that it is possible to know what data is most useful for understanding a context and what questions should be asked of it before that context has been studied.Footnote 47
Negotiating the risks of secrecy was thus a central concern for me in accessing CIJA personnel and trying to build a credible, scholarly account. It was only after 18 months of relationship-building that I was permitted to attend the annual training workshop between headquarter and Syrian field staff in late 2018. This three-day event was structured by secrecy in numerous ways. In our opening session, which included a customary welcome and introduction to new staff, participants were asked not to divulge their last names to anyone in the room. Highly personal reflections and experiences in this quasi-anonymized register would come to play out over the course of the workshop, highlighting how secrecy is a constitutive, social practice.Footnote 48 Thus, Rappert suggests that instead of seeking to ‘crack the status of the hidden … [instead, we should] attend to how the circulation of secrets helps constitute understanding’.Footnote 49
Later in a Q & A session between Syrian staff and the directors, frustration with secrecy was palpable. While Chris Engels assured the Syrian fieldworkers that later the world would be able to hear of CIJA’s efforts, it was imperative to sustain secrecy for now. Such a promise of delayed publicity was hard to accept for some of CIJA’s Syrian staff whose witness testimony work relies on the goodwill and trust of fellow Syrians who desperately want to see speedy results in divulging secrets about their own abuse. Here we can see secrecy as productive of a variety of group solidarities based on the ‘exclusion of outsiders and the inclusion of insiders’.Footnote 50
Attending the training workshop was instructive in allowing me to question earlier assumptions I had had about the value of face-to-face dialogue and interaction. I had conducted three Skype interviews the previous year with some of CIJA’s Syrian staff with the assistance of CIJA’s Moroccan liaison officer, who stepped in whenever my Arabic failed me. While it was clear that I was far from fluent throughout our conversation, my ability to inflect my faltering speech with Syrian colloquialisms, picked up while studying Arabic there years before, instantly opened up a degree of trust with my interlocutors. Two of these interlocutors also attended the workshop. While we greeted each other and maintained a friendly disposition throughout the sessions and meals together, the intimate reflection made possible through the distancing effect of technology now felt too confronting and uncomfortable. On saying my goodbyes to these two former interviewees, I came to realise that the level of secrecy preserved through disembodied technologies is also productive of intimacy.Footnote 51 I left the workshop with greater confidence in the research I had carried out earlier that was not the result of classic ethnographic participant observation.Footnote 52 Rather than feel assured by the solidity of an identifiable field site, I realised that the ‘field’ of my research was a messy, emergent series of fragmented experiences in which I am implicated.
3.2 Reflections on the nature of ‘field’, ‘subject’, and ‘scholarly knowledge’: Anthropological contributions
While international law scholarship is now more comfortable with interdisciplinary dialogue, including from some key figures straddling the fields of international law and anthropology,Footnote 53 reading beyond these key figures provided me with some intellectual scaffolding on which to make sense of my forays into the CIJA ‘field’. Over the last few decades, anthropology’s reflective turn has precipitated a questioning of prevailing accounts about the nature of the ‘field’, ‘subject’, ‘researcher positionality’, as well as ‘ethnographic authority’, and the ‘(im)possibility of objectivity’. While I cannot do justice to this rich set of debates here, acquainting an international law readership with some of these insights is instructive for how to think about our own (legal) knowledge claims. Thus, in this section, I first offer a schematic introduction to the field of anthropology before returning to my site of CIJA through the lens of scholarly debates about ‘fieldwork’, ethnographic relationships, and para-ethnography. Echoing Twining and his evaluation of the relationship between law and anthropology, I want to show that ‘interdisciplinary collaboration should be viewed as a means to an end, not as an end in itself’.Footnote 54 Rather than try to create a ‘centaur discipline’ of law and anthropology,Footnote 55 instead we can attempt ‘an hermeneutic tacking between two fields, looking first one way, then the other, in order to formulate moral, political, and intellectual issues that inform them both’.Footnote 56
While employed across a range of disciplines with widely divergent iterations,Footnote 57 ethnography is first and foremost associated with anthropology. Darian-Smith characterizes ethnography not only as a scholarly methodology, but as a perspective and a type of writing.Footnote 58 Consequently, it is particularly concerned with the researcher seeing social action as a form of meaning-making.Footnote 59 Classically, this took the form of the single (white, male) scholar ‘displacing’ himself from his own cultural context to immerse himself in another, only to return at a remove from the field site to write up his (objective) observations.Footnote 60 While this cliché no longer holds, the idea of ‘displacement’ is still valuable and can be understood as ‘any inquiry that problematizes what the researcher would otherwise take for granted … [it] need not be reduced to matters of physical location’.Footnote 61 Yet ethnography entails more than the act of (usually, physical) dislocation through practices such as fieldwork. Instead, for Ingold, it is about the reflective and documentary process that occurs afterwards. Thus, ‘to cast encounters as ethnographic is to consign the incipient – the about-to-happen in unfolding relationships – to the temporal past of the already over’.Footnote 62
Although reflexivity within anthropology tends to be linked to the ‘crisis of representation’ in the 1980s,Footnote 63 one of its key protagonists, Marcus, points out that already by the 1960s questions about scholarly objectivity were being raised.Footnote 64 In particular, it was during the ‘interpretive turn’ and the work of Clifford Geertz during the 1960s and 1970s that claims to anthropological ‘truth’ could no longer hold.Footnote 65 Increasingly, critiques within the discipline revolved around exposing the messiness of fieldwork, for example, through ‘confessional writing’; contextualizing the ‘field’ within colonialism; and experimenting with different types of interpretive writing.Footnote 66 Such an intellectual shift was coterminous with changes occurring in a globalizing world where the possibility of locating and studying ‘others’ from a distant and distinct field site proved increasingly illusive.Footnote 67 Experiencing the world as fragmented, emergent, and ‘unbearably complex’, anthropologists soon came to understand the nature of research and its re-presentation through ethnographic writing as a messy and open-ended endeavour.Footnote 68
While debate now is less intense than at its height during the ‘crisis of representation’, disciplinary discomfort prevails and ‘there is little agreement as to what … constitutes a proper site for anthropological research’.Footnote 69 This is captured in the seminal work of Gupta and Ferguson on the nature of the ‘field’ in the late 1990s. For them, ‘“[t]he field” of anthropology and “the field” of “fieldwork” are … politically and epistemologically intertwined; to think critically about one requires a readiness to question the other’.Footnote 70 Instead of studying a culture, or an organization in a particular site,Footnote 71 we can study a situation,Footnote 72 a network,Footnote 73 or a discourse.Footnote 74 If ‘field’ as a category collapses, so too does the possibility of objective knowledge. Thus, Gupta and Ferguson suggest that:
[r]ather than viewing anthropologists as possessing unique knowledge and insights that they can then share with or put to work for various ordinary people, our approach insists that anthropological knowledge coexists with other forms of knowledge. We see the political task not as sharing knowledge with those who lack it, but as forging links between different knowledges that are possible from different locations and tracing lines of possible alliance and common purpose between them. In this sense, we view a research area less as a field for the collection of data than as a site for strategic intervention.Footnote 75
Ferguson and Gupta’s contribution here is about far more than a persuasive account about the disintegration of ‘field’. More significantly, they are suggesting that the researcher is always implicated in the re-presentation of a ‘field’.Footnote 76
Before I went to CIJA’s headquarters, and like many anthropologists, I felt anxiety about not ‘being there’Footnote 77 – in the ‘field’; I thought that this could be remedied by ‘grounding’ my transnational and disembodied Skype conversations in a place with its particular culture as per former classic anthropological studies. Perhaps rather than settle on one site, instead, I could adopt a multi-sited approach to allay my empirical anxieties.Footnote 78 Yet, as we cannot observe all phenomena, we need to question such desires if we see our work as something other than empiricism. Thus, in moving from the observable to the non-observable, in his study of non-local ethnography, Feldman suggests that participant-observation can give way to, ‘[p]articipant-listening [which] responds not only to the problem of ethnographic access but also to the decomposition of ethnographic location’.Footnote 79 My own research across multiple sites and as grounded in none, resonates then with Feldman’s move to non-local ethnography, but tries to remain ‘ethnographic’ through my own reflections on the dissonance and displacement I experienced while encountering such (non)sites.
As well as questioning the site of anthropological study – the ‘field’ – anthropologists also began exploring alternative subjects of study. Where once the norm had been for the Western researcher to displace herself in a foreign realm redolent of colonial practices,Footnote 80 by the 1970s there was already a move to bring anthropology ‘home’ and to study those either in comparable or higher social positions. Thus, in her seminal piece in 1972 on ‘studying up’, Nader argued that increasingly ethnographers would not only concern themselves with the marginalized ‘other’, but should turn to studying elites.Footnote 81 The effects of this move are significant in reversing the standard ‘structural dominance’ between the ethnographer and her ‘informants’, and calling for reassessing the nature of knowledge production and ethicsFootnote 82 in such spaces as I discuss in Section 4.
Yet this turn to elites does not necessarily only lead to a shift in the subject of study.Footnote 83 More significantly, it can also entail a radical questioning about the nature of ethnographic knowledge itself as no longer the privileged preserve of the displaced and detached observer. Thus, in a self-conscious break with ‘studying up’ in their consideration of global elites, Holmes and Marcus’
object of study is not the interior lives of experts as an elite as such, but rather to understand their frame, which we assimilate by collaboration and complicity, for a project of tracking the global, being engaged with its dynamics from their orienting point of view.Footnote 84
Such an approach is para-ethnographic, which is a method or sensibility that emerged at the turn of the twenty-first century out of anthropology’s reappraisal of reflexivity.
Most simply, we can understand para-ethnography as a form of knowledge generation that relies on the perspectives of ethnographic subjects themselves, ‘reconceived as theorists of a kind’.Footnote 85 In my case, this meant that I learnt from my CIJA interlocutors presenting their reflections on their work to me rather than me generating my own ‘detached’ reflections as per participant observation. For Islam, para-ethnography, ‘starts from the premise that organizational actors can often represent their own cultures to outsiders in ways that are self-conscious, analytical, and strategic’.Footnote 86 While para-ethnography is often discussed alongside a range of other reflexive anthropological methodologies,Footnote 87 here, I want to stress its singular epistemic value in studying professional actors situated in globalized spaces, such as CIJA personnel. Marcus and Holmes are perhaps the most prominent scholars to have written on the approach and they offer the following description of para-ethnography:
We presume that we are dealing with counterparts rather than “others” – who differ from us in many ways but who also share broadly the same world of representation with us, and the same curiosity and predicament about constituting the social in our affinities. This condition of orienting ethnography in a multi-sited project changes fundamentally many of the norms and forms of the established model of fieldwork and ethnographic writing.Footnote 88
Para-ethnography then entails intellectual risk as it requires an ‘act of deferral’Footnote 89 by the researcher who now, ‘put[s] the question of what [is] interesting or important in the hands of one’s interlocutors’.Footnote 90 This often instils in the researcher a sense of loss of her orienting author(ity) and expertiseFootnote 91 in, ‘an overall process of exchange and dialogue’.Footnote 92 I too felt ungrounded in the midst of my CIJA sojourn, but encountering scholarly debates on para-ethnography has provided an invaluable lens through which to read my own relationship to my fieldwork and to my CIJA informants.
Interviews can be particularly helpful for informing para-ethnography. While acknowledging some of the pitfalls of elite interviewing,Footnote 93 I want to argue that it is nevertheless here, through a particular form of discussion between two lawyers, that new understandings about law and governance can and do emerge. Within any conversation occurring in a given research setting, a variety of shifting power imbalances are at play.Footnote 94 Perhaps, then it is better not to speak of ‘studying up’, but rather ‘studying across’ or ‘studying next to’, to capture the relative power parity and affinity that we can at least aim for in our conversations with fellow lawyers.Footnote 95 Gusterson suggests that we see interviews as dynamic events ‘through which the identity of the subject … [is] performed and even co-constructed by the interviewer and interviewee’.Footnote 96 In conducting my CIJA research, there were times when I had to put my legal training to the side as the doctrinal methods I had learnt at Law School did not assist me in understanding the nature of CIJA’s work. Holmes and Marcus make a similar point as anthropologists when they make their case for para-ethnography: ‘we must therefore relearn our method from our subjects as epistemic partners, from a careful assessment of how they engage our world and our time intellectually’.Footnote 97 Practically, we can (re)present this in our writing by providing greater space to our subjects’ voices, especially through long, verbatim quotations.Footnote 98 Yet this ‘entails risks [of the research] becoming merely parasitic and derivative … The navigator [i.e., researcher] brings little to the table and seeks the knowledge of the subject’.Footnote 99 Perhaps it was for this reason that on reading my substantive CIJA work, which includes long quotations, law colleagues and peer reviewers told me to remove or at least radically cut down such excerpts. As the ‘disembodied’ scholar,Footnote 100 it was my task to analyse general trends from the data and (re)present them in a neutral and detached third person voice.
4. Research as responsibility and the ethics of scholarly expertise
‘The ways in which we, as researchers, are positioned as members brings alive our identities in relation to others – membership is not only about the choices we make about our involvement as researchers, but also about privilege, ethics and politics. It is, importantly, not only choices we make but also how participants see us in relation to them and to those around them.’Footnote 101
How we choose to re-present our research is not only a methodological choice, but also an ethical one.Footnote 102 While the general relationship between me as a researcher granted privileged access and CIJA as an organization able to gain some form of scholarly legitimation is mutually beneficial, there are a variety of interests and perspectives at stake within CIJA itself, particularly given its diverse staffing base located over many sites.Footnote 103 For example, I noted quite different attitudes about the promise of international law for CIJA’s lawyers in Europe compared to those working in the Middle East. There was a much greater sense of urgency for the Syrian fieldworkers whose professional and personal identities had been transformed through their CIJA accountability work. While most had worked as lawyers before the war, none had worked in the particular idiom of international criminal justice, highlighting a stark difference with CIJA’s Europe-based lawyers.
Not only did I benefit from enjoyable conversations over tea in CIJA’s European headquarters as well as by Skype with various experts in Australia and the United States, but I also spoke to Syrian lawyers risking their lives for their work. My interviews with these lawyers felt more risky, not only in implicating me in their continued safety, but also in straying into predatory, quasi-touristic inquiryFootnote 104 that might provide nothing of value to the subjects themselves.Footnote 105 After the immediate concerns about whether I could get ‘enough’ (quality) material in this constrained context, more importantly, I needed to ensure that I could share this material in an ethical manner.Footnote 106 As a researcher who has lived in Syria and has lost friends to the conflict, this dilemma is particularly raw and it has forced me to reflect on the utility of my own discipline of international law and the recurring desire to ‘do something’ as a scholar or as a lawyer.Footnote 107
While all lawyers must question their positionality as advocates, perhaps this is particularly the case for international lawyers cognisant of their field’s complicity with empire and its persisting Eurocentrism.Footnote 108 Does recognizing the field’s problematic aspects remedy these faults or is something more radical required?Footnote 109 Similarly, for anthropology,
an outcome of the discipline’s recent concern over its colonial roots, and fears regarding its possibly on-going neo-colonial disposition, has been an extension of the missive that anthropologists “should do no harm” toward the view that anthropologists’ work “should do some good”.Footnote 110
What type of ‘good’ can international lawyers do in relation to the Syrian catastrophe and does this lie within the realm of the academy? While engaging with CIJA’s Syrian staff who are often passionately committed to the cause of international criminal accountability, the distinction between scholarship and activism often felt rather tenuous. Given the slow pace of academic debate as well as international trials at present, the allure of ‘extra-academic’ endeavours seem difficult to dislodge.
Studying dangerous situations as framed through secrecy does not mean that such work is qualitatively distinct from other forms of scholarly inquiry.Footnote 111 It simply provides a starker illustration about the potential blurring between scholarship, advocacy, and activism.Footnote 112 CIJA’s chief legal investigator for Syria articulated this most clearly for me in our 2017 Skype conversation:
[w]hat I want to do now is to speak to your legal conscience, Michelle. Since you are conducting this research about this subject, I want to highlight the importance of having this research widely published and to reach media outlets. So that other communities, our partners in humanity and brothers and sisters in humanity, are aware and are supporting this effort [CIJA], and to support, let’s say, this glimmer of hope that has started to become a reality in Syria. This is [CIJA], the system of justice and accountability, or the system of criminal trials that aims to achieve criminal justice. Just the fact that we are pursuing criminal justice generally, that we are holding this slogan of criminal justice is huge, and this is a responsibility on us as legal actors and lawyers, it is necessary to pursue this [criminal] aspect. I put a responsibility on you now, as a colleague, to publish this focus on justice and to affirm it, and as CIJA has undertaken an important role in this, so it is necessary to support this work and to provide means and resources, whether financial or logistical … so that this work will continue in Syria. Because this started as a culture [of criminal justice] and it is becoming a [more robust] culture, so it our job is to support and follow this culture.Footnote 113
Conscious of his own tenuous position, the speaker’s entreaty here is a powerful call to action, forcing me to reflect on my responsibility as a privileged researcher,Footnote 114 a fellow lawyer, and a potential activist. While he clearly distinguishes himself from me through his use of the first person singular (I/me) compared to the second person singular (you), there is also an implicit assumption about our (first person plural) shared understanding of the word ‘justice’. While there is much scholarly debate on the hollowness of this term,Footnote 115 here my interlocutor suggests that, as fellow lawyers interested in Syria’s collapse, no further definition is needed. In asking me to broadcast my findings about CIJA’s (noble) work then, he calls on me to abandon any scholarly pretence of political detachment. Regardless of my own position on how best to respond through law to the Syrian case, my limited advocacy capacities as an individual legal academic ensure that I have already failed in this wider task. Constrained as I am by secrecy, it is also difficult to know how to put a persuasive case across to a wider audience.
This entreaty highlights the irresolvable problems we face as scholars in seeking to re-present our subjects with dignity and with respect while striving for academic detachment in our writing – something I am trying to contest here in this article.Footnote 116 I wanted to provide a space for the chief investigator’s ideas without necessarily agreeing with them.Footnote 117 Such a move to polyvocality then forces us to grapple with the extent to which we can include the voices of our para-ethnographic partners while opening up the possibility of critique at the same time. For Fassin:
[t]he difficulty of developing a critique that is both autonomous and engaged is thus twofold: the actors have to recognise themselves in what is said of the way they act, but at the same moment, they have to perceive the distance that is being established. To put it more forcefully, the critical stance I am advocating necessitates for my interlocutors a dual sentiment of recognition and betrayal. Criticism is both loyalty and displacement.Footnote 118
While I am sure that my interlocutor could recognize CIJA as represented in my own scholarly descriptions, my quest for a degree of detachment might also entail a sense of betrayal.
I wanted to give voice here to CIJA’s chief investigator on Syria to illustrate the delicate ethical relationship the researcher enters in undertaking this type of para-ethnographic inquiry. Yet quotations ‘are always staged by the quoter, and [for Clifford they] tend to serve merely as examples, or confirming testimonies’.Footnote 119 While inclusion does not mean endorsement or agreement, I do ultimately remain as the single author of this text.Footnote 120 Thus, this type of gesture of inclusion on my part can only ever be a small para-ethnographic step closer to polyvocality not only in decentring my own author(ity),Footnote 121 but in recognizing a ‘variety of possible readings’ that can arise through the agency of the reader herself.Footnote 122
4. Conclusion
My own reading of CIJA’s international criminal accountability work reveals the particular discipline I have been trained to embody, international law, and the extent to which I can step beyond these structures by engaging with anthropological debates while continuing to hold international lawyers as my primary audience. Although I have started to develop a substantive account about the organization as illustrative of ‘entrepreneurial justice’, in this article I wanted to do something different. I wanted to explore how I have also learnt about the possibilities and limitations of legal inquiry and knowledge in relation to researching secret spaces. I suggested that one particularly fruitful – if risky – approach is through a turn to para-ethnography and its attendant requirement of the loosening of own scholarly author(ity). Yet this rests on a variety of risks. While the nature of CIJA’s entrepreneurial justice work is structured through risk as partly offset through secrecy, secrecy itself also begets risk as its legitimacy can be harder to sustain. As a scholar interacting with and dependent on my CIJA interlocutors, operating within the constraints of secrecy also produces academic risks. Here, I illustrated the constant negotiation between risk and integrity that continues to play out for me as the researcher and for CIJA as the research ‘site’. In puzzling through the many risks to our research ‘subjects’ and to our (disciplined) careers, I have suggested we do so through an ethic of scholarly responsibility and humility.Footnote 123
Appendix
Interview questions for Syrian CIJA employees
1. Please tell me about any university training or specific legal training you have.
2. Please tell me about your professional background before the war.
3. When did you start working in the accountability field and why?
4. How would you describe the nature of consciousness about international criminal justice amongst the general public as well as lawyers before the conflict?
5. How would you say this has changed as a result of the war? For example, is there greater interest in international law/human rights in some sectors of society? If so, please illustrate.
6. To what extent was the Syrian war a catalyst for your interest in this work?
7. Could you please describe how you understand the evolution of the accountability field in Syria since the conflict began? In particular, how was expertise in local personnel developed? What type of interaction has there been between local, regional and international experts? What are the divisions and controversies on the ground in Syria about how best to prepare the path for accountability?
8. How did you come to work at CIJA?
9. How would you describe the mandate and vision of CIJA in Syria? Would you say that your colleagues share this understanding and vision?
10. Does and if so, how, does CIJA interact with other (expert) individuals and organizations in Syria? To what extent do you learn from each other about best practice?
11. What is your opinion of human rights advocacy organizations working within Syria? How do they contribute to eventual accountability?
12. To what extent has there been and is there awareness for Syrian experts about regional experiences with international criminal justice (such as Palestine, Sudan, Libya, Lebanon)?
13. In your personal capacity, what do you hope will happen in a post-war settlement? What do you think will actually happen? How significant is international criminal law in your understanding?
14. Are there any cases you draw on in particular for informing your work and/or your hopes and expectations about a post-war settlement?
15. Is there anything else you would like to add?
Interview questions for all other individuals
1. Please outline in general your legal training: education and experience.
2. Please outline the nature of your ICL work.
3. Why did you start work in the ICL field and how would you describe the field then compared to now?
4. Please outline how you came to work on/with CIJA? What was/is your role?
5. How would you describe CIJA’s mandate?
6. How do you understand this mandate in relation to accountability in Syria as well as accountability efforts in general?
7. How has your experience within CIJA shaped your understanding of the ICJ field? Where do you see the ICJ field heading? What are the key actors and issues for it?
8. How do you understand the role of HR NGOs and advocacy? How is this related to CIJA and your work (or not)?
9. What are the key challenges in achieving accountability in Syria? What does ‘accountability in Syria’ mean to you?
10. To what extent do you see experts within and outside of CIJA sharing your views? Is this important or not
